History of Asset Forfeiture

Asset Forfeiture History

Forfeiture has been used, literally since ancient times, to take property wrongfully used or acquired. References to forfeiture in the Old Testament[1], Greek[2] and Roman[3] law indicate that its purpose was to exact a penalty against property which had been used or acquired in connection with some type of prohibited conduct. In modern times, forfeiture is used to protect the public from harmful products and the property of criminal enterprise.[4]

The first statute authorizing civil forfeiture was enacted by Congress in 1789 as a sanction for the use of ships in customs violations.[5] In 1978, Congress expanded the law to permit forfeiture of all money used in, or acquired from, the illegal drug trade[6] and authorized the forfeiture of real property in 1984.[7]

Federal civil and criminal forfeiture statutes now reach substantially the same offenses and type of property. All fifty states and the District of Columbia now have some type of civil and/or criminal forfeiture statute in effect.[8]

As a result, criminals are deprived of their working capital and their profits, thereby preventing them from operating. A secondary benefit of forfeiture laws is that forfeited property, or the proceeds of its sale, has been turned over to law enforcement and is used to fight against crime. While the purpose of forfeiture and the evaluation of a forfeiture law or program should never be based solely on the generation of revenue, it is only fitting that forfeited property be used to combat those who seek to profit from crime.

In 1988, a law enforcement coalition consisting of the Attorney General and the four county prosecutors and police chiefs proposed that a new, uniform forfeiture law be enacted H.B. No. 2080, which became Act 260, Session Laws of Hawaii 1988, and was codified as chapter 712A, HRS, represented a combination of current federal forfeiture law, the forfeiture act adopted by the State of Arizona in 1986, and the provisions of Hawaii’s various laws relating to forfeiture. The purpose was to create a law which would be both procedurally and substantively comprehensive and, to the extent possible, uniform across the State. Chapter 712A provides for administrative forfeitures and judicial forfeitures against individuals and property.

Perhaps the most important advantage afforded by chapter 712A is a provision by which forfeiture of personal property worth less than $100,000, or forfeiture of any vehicle or conveyance, regardless of value, is administratively processed. Previously, all forfeitures were handled through judicial proceedings, resulting in the consumption of judicial resources even where the forfeiture was uncontested.

Under section 712A-10, HRS, a prosecuting attorney files a petition for administrative forfeiture of seized property with the Department of the Attorney General. Persons who own or otherwise have an interest in seized property (“claimants”), have thirty days to respond from the date they receive notice of the pending forfeiture. Claimants may file a Petition for Remission or Mitigation of Forfeiture. The petitioner asks the Attorney General to invoke the executive power to “pardon” the property, in whole or in part, because of extenuating or mitigating circumstances not otherwise amounting to a legal defense to forfeiture. Depending on the circumstances, the Attorney General may pardon the property in its entirety and “remit” (return) it to the claimants or “mitigate” the forfeiture by returning the property on payment of a fine.

Finally, the claimant may do nothing, in which case forfeiture is ordered after expiration of thirty days. By these means, forfeiture proceedings can be disposed of administratively without unnecessary consumption of valuable judicial resources while still providing those who want their day in court” the opportunity to challenge the forfeiture.

References

1. Exodus 21:28: “If an ox gore a man or a woman, that they die: then the ox shall surely be stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.”(back to document)

2. Aeschines, quoted in O. Holmes, The Common Law(1881): “[W]e banish beyond our borders sticks and stones and steal, voiceless and mindless things, if they chance to kill a man; and if a man commits suicide, bury the hand that struck the blow afar from the body.”(back to document)

3. Twelve Tables 1, translated in 1 Scott, The Civil Law, 69 (1932): “If a quadruped causes injury to one, let the owner tender him the estimated amount of the damage; and if he is unwilling to accept it, the owner shall . . . surrender the animal that caused the injury.”(back to document)